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Dreiband v. Nielsen

United States District Court, District of Columbia

August 3, 2018

MAHLA DREIBAND, Plaintiff,
v.
KIRSTJEN NIELSEN, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant.

          MEMORANDUM OPINION

          JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE.

         Plaintiff Mahla Dreiband is an Information Technology Specialist with the Department of Homeland Security. In this pro se Title VII suit, she alleges that her employer discriminated against her on the basis of her national origin and disability, retaliated against her for filing a complaint with the Equal Employment Opportunity office, and subjected her to a hostile work environment. She also seeks to recover damages under the Equal Pay Act, alleging that she was the victim of wage discrimination. Defendant now moves for summary judgment, contending that Plaintiff has offered no material facts to demonstrate that she suffered any adverse employment actions, that she was subjected to discrimination or a hostile work environment, or that she was the target of retaliation. Instead, DHS asserts that the five-day suspension of which she complains had a legitimate, non-discriminatory basis - a physical altercation with another Department employee. Agreeing, and also finding no jurisdiction for her pay claim, the Court will grant the Motion.

         I. Background

         A. Factual History

         As it must at this stage, the Court sets out the facts here in the light most favorable to Plaintiff. Dreiband, whose national origin is Iranian and who suffers from a disability of “pre-arthritis, ” see ECF No. 14 (Amended Complaint), ¶¶ 11-12, was hired as an IT specialist for DHS in 1989. Id., ¶ 15. Since 2003, she has worked for U.S. Immigration and Customs Enforcement, which is a component of DHS. Id., ¶ 16. At the time at issue in the Complaint, Plaintiff worked at level GS-2210-12 in ICE's Office of the Chief Information Officer. See Def. Exh. B-1 (Report of Investigation) at 22.

         Between 1998 and 1999, Dreiband worked on the same team as Nancy Luc, another IT specialist with DHS and the woman who, over a decade later, Plaintiff would allege assaulted her in a gym locker room. See Compl., ¶¶ 18-20. In 1998, Dreiband filed an EEO Complaint against Luc citing her “harassment towards Plaintiff.” Id., ¶¶ 13, 18. After requesting reassignment, Dreiband was moved from Luc's team in or around 1999. Id. Although they were no longer co-workers, Plaintiff and Luc continued to work in the same office building. Id., ¶ 19. On February 7, 2014, the two women found themselves in the locker room of Vida Gym, a facility at which ICE employees have membership. Id., ¶ 27. While the specific facts of what happened in the gym are in dispute, both sides agree that Dreiband and Luc were involved in a physical altercation that resulted in the former being bitten by the latter. Id., ¶¶ 28-29; ECF No. 20-1 (DSMF), ¶ 3. The police were called to the scene, and both women were subsequently arrested. Id., ¶ 5.

         Following this incident, Defendant opened an administrative inquiry, which ultimately led to the suspension of both women. See Def. Exh. G-3 at 168. On July 18, 2014, Plaintiff was issued a notice of a proposed, five-day suspension without pay for engaging in conduct unbecoming a federal employee. See Def. Exh. G-4 at 171. Dreiband responded to the proposed suspension via her attorney on August 7, 2014, stating that the penalty should not be sustained because “Ms. Dreiband was the innocent victim of a malicious attack by Ms. Luc.” ECF No. 20-9 (Response to Proposed Suspension). That October, the Acting Chief Information Officer, Steven Smith, issued a decision sustaining the charges and the penalty, finding that the “alleged misconduct [was] supported by a preponderance of the evidence.” Def. Exh. G-6 at 189. Plaintiff served her five-day suspension from October 9 to October 13, and Luc served hers from November 7 to November 11. See DSMF, ¶¶ 11-12. Dreiband alleges that “[f]ollowing the attack, ” Luc “told numerous coworkers and supervisors” that Plaintiff had initiated the fight at the gym. See Compl., ¶ 36. Although Dreiband states that she complained to management about such statements, she asserts that her supervisors did not intervene. Id., ¶ 37.

         The next relevant incident occurred on May 2, 2014, when an ICE manager sent Plaintiff, as the property custodian for her office, an email identifying missing government property. See Def. Exh. G-12 at 242. Dreiband responded that she had located the assets, id. at 244, but Leonard Pulley, the Chief of the Network and Infrastructure Services Branch, replied that the inventory had in fact been located by two other individuals and that two items remained missing. Id. at 242-43. Plaintiff in turn responded that she was confused about Pulley's characterization, but he did not reply to that email. Id. at 242.

         The same day, Plaintiff received her Fiscal Year 2014 mid-year performance evaluation. Dreiband's supervisor gave her a rating of “fully satisfactory” for the elements of technical proficiency, customer service, project management, and information-systems security. See Def. Exh. G-10 at 215-25. For the element of teamwork, cooperation, and collaboration, however, Plaintiff's evaluation stated that she “ha[d] much room for improvement, ” noting that she was “involved in an altercation in early FY14 with another ICE . . . employee” and that she had been counseled on two separate occasions regarding management policy and guidance. Id. at 222-23.

         B. Procedural History

         On October 20, 2014, Plaintiff contacted an EEO Counselor regarding her suspension and treatment after the gym altercation. See Def. Exh. B-1 at 22. Three months later, ICE notified Dreiband that her counseling had concluded and informed her of her right to file a formal complaint, a step she took on January 28, 2015. See Def. Exh. A-1 at 17-19. Plaintiff's complaint was filed with ICE's Office of Diversity and Civil Rights (ODCR) and presented the following claim: ICE discriminated against her and subjected her to a hostile work environment based on national origin, religion, age, disability, and reprisal when (1) a co-worker physically attacked Plaintiff; (2) during an internal investigation of the incident, the co-worker made false statements about Dreiband's work performance and told the investigator that Plaintiff was moved to a different office fifteen years prior; (3) management issued Dreiband an unfavorable midyear review and accused her of inappropriate accounting for government property; and (4) Plaintiff was suspended for five days. See Def. Exhs. C-2 at 97, C-3 at 102.

         In August 2015, ODCR provided Dreiband with a Report of Investigation (ROI) and ultimately the final agency decision. See Def. Exhs. D (Notice Letter), E (FAD Request). She responded by filing suit in this Court on May 12, 2017. Dreiband's Amended Complaint, which was filed in March 2018, alleged three grounds for relief under Title VII - national-origin discrimination, hostile work environment, and retaliation - and three others under the Rehabilitation Act - disability discrimination, retaliation, and hostile-work environment. See Compl., ¶ 1. Plaintiff also alleged, although she did not include any relevant count, that her action sought to “recover damages” under the Equal Pay Act. Id, ¶ 2. DHS now moves to dismiss or, in the alternative, for summary judgment. See ECF No. 17.

         II. Legal Standard

         As the Court considers the Motion under the summary-judgment standard, it sets out that one alone. Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 247-48 (1986); Holcomb v. Powell433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris,550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular ...


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